Circuit Court for Baltimore City Case No. 24-C UNREPORTED

Transcription

1 Circuit Court for Baltimore City Case No. 24-C UNREPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No September Term, 2014 ELLIOT DACKMAN, ET AL. v. DAQUANTAY ROBINSON, a Minor, by his Mother and Next Friend, TIESHA ROBINSON Woodward, C.J., Berger, Arthur, JJ. Opinion by Woodward, C.J. Filed: August 31, 2018 *This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule

2 In this case, we are again confronted with the complexities of proximate causation that arise in childhood lead paint poisoning litigation. Daquantay Robinson, appellee, by and through his mother and next friend, Tiesha Robinson, filed suit against appellants, the property owners 1 of a row house located at 1642 E. 25th Street, Baltimore, Maryland, for injuries resulting from lead paint poisoning from 1997 to At the conclusion of a fiveday jury trial in the Circuit Court for Baltimore City, the jury found against appellants and awarded appellee $2,088,330 in damages. The circuit court, however, granted appellants motion for remittitur and reduced that award to $1,530,000. On appeal, appellants present six questions for our review, which we have consolidated and rephrased as follows: 2 1 Elliott Dackman was sued as trustee of the Dackman Company and Jacob Dackman & Sons, LLC. Elliot Dackman was also sued individually along with the estates of Bernard Dackman and Sandra Dackman, because all of these individuals were owners and managers of Dackman Company and Jacob Dackman & Sons, LLC during the time appellant lived 1642 E. 25th Street. 2 Appellants questions, as stated in their brief, are as follows: 1. Was the Trial Court legally correct when it denied Appellants Motion for Summary Judgment as to Appellee s claim for negligence? 2. Did the Trial Court err and/or abuse its discretion when it denied Appellants Motion to Strike the untimely expert report from economist Richard Lurito, Ph.D and/or Appellants request to postpone the trial? 3. Did the Trial Court err and/or abuse its discretion when it denied Appellants Motion In Limine to Exclude the Testimony of Estelle Davis, Ph.D., C.R.C., and Richard Lurito, Ph.D., and when the Trial Court permitted Dr. Davis and Dr. Lurito to provide expert opinions at trial?

3 1. Did the circuit court abuse its discretion by denying appellants motion for summary judgment as to negligence? 2. Did the circuit court abuse its discretion by denying appellants motion in limine to exclude the testimony of Dr. Jacalyn Blackwell-White and allowing Dr. Blackwell-White to provide testimony concerning the source of appellee s lead exposure at trial? 3. Did the circuit court abuse its discretion by denying appellants motion in limine to exclude the testimony of Estelle Davis, Ph.D., C.R.C., and Richard Lurito, Ph.D., and allowing those experts to provide testimony at trial? 4. Did the circuit court abuse its discretion by denying appellants motion in limine to exclude the report and testimony of Richard Lurito, Ph.D., and by denying appellants motion to postpone the trial? 5. Did the circuit court err or abuse its discretion by denying appellants motion for judgment at the conclusion of appellee s case, motion for judgment at the conclusion of all evidence, motion for judgment notwithstanding the verdict, and/or motion for new trial? 6. Did the circuit court err or abuse its discretion by denying appellants request to remit appellee s economic loss award to $0.00 pursuant to appellants motion for remittitur? 4. Did the Trial Court err and/or abuse its discretion when it denied Appellants Motions In Limine on the opinions of Dr. Jacalyn Blackwell-White, and when the Trial Court permitted Dr. Blackwell-White to offer expert opinions at trial concerning the source of Appellee s lead exposure? 5. Was the Trial Court legally correct in denying Appellants Motion for Judgment at the conclusion of Appellee s case, at the conclusion of all of the evidence, and Appellants Motion for JNOV and/or Motion for New Trial? 6. Did the Trial Court err and/or abuse its discretion in refusing to remit Appellee s economic loss award down to $0.00, given the speculative nature of the jury s economic loss award? 2

4 For the reasons that follow, we conclude that the circuit court did not err or abuse its discretion, and thus shall affirm the judgment of that court. BACKGROUND Appellee was born on February 11, Shortly before his birth, appellee s mother, grandmother, and three other family members began residing in a row house located at 1625 E. 25th Street in Baltimore City, ( the Property ), a property owned and managed by appellants. Until he began attending daycare at eighteen months old, appellee stayed exclusively at the Property and did not visit any other properties. Appellee lived at the Property from his birth in 1997 until 2001, and had the following blood-lead level test results: Date Taken Blood-Lead Level 3 December 3, µg/dl May 13, µg/dl November 11, µg/dl June 11, µg/dl February 18, µg/dl August 30, µg/dl With respect to the condition of the Property, appellee s grandmother, Sandra Moses, stated in her affidavit that there was chipping, peeling[,] and flaking paint all over the place when they moved in. Moses stated that there was chipping, flaking, and peeling paint on the window frames, as well as in the basement on the ceiling, doors[,] and 3 Blood-lead levels are measured in micrograms per deciliter (µg/dl) of blood. See Standard Surveillance Definitions and Classifications, Center for Disease Control and Prevention, (last updated Nov. 18, 2016). As of 2012, the Centers for Disease Control and Prevention considers blood-lead levels greater than 5 µg/dl to be elevated. Id. 3

5 doorframes. As to the exterior of the house, Moses testified that there was chipping, flaking, and peeling paint on the door, posts[,] and ceiling of the front porch. In her deposition, appellee s mother, Tiesha Robinson ( Ms. Robinson ), similarly recalled chipping, flaking, and peeling paint on the window frames, as well as the heater in the room that she shared with appellee. There was also a hole in the wall of appellee s room that Ms. Robinson stated appellee would pick at. In 2012, appellee, by and through his mother and next friend, Ms. Robinson, sued Elliot Dackman, individually and as trustee of the assets of Dackman Company and Jacob Dackman & Sons, LLC, (appellants or the Dackmans ), 4 in the circuit court for alleged injuries sustained from exposure to lead-based paint at the Property. The complaint alleged claims based on appellants negligence, violation of the Maryland Consumer Protection Act ( MCPA ), and negligent misrepresentation. In June 2013, ARC Environmental, Inc. ( ARC ) conducted lead testing at the Property. The testing detected lead-based paint on seven interior surfaces and two exterior surfaces. Specifically, lead-based paint was detected in the basement storage room on the door surface and jam[,] and in the basement hallway on the door casing, threshold, [ ] headers[, and] ceiling. Lead-based paint was also detected on the front exterior on the porch post and ceiling. During discovery, the parties named a number of expert witnesses. Appellee 4 As stated supra, appellee also sued the estates of Bernard Dackman and Sandra Dackman, because in addition to Elliot Dackman, these individuals were also owners and managers of Dackman Company and Jacob Dackman & Sons LLC during the time appellee lived at 1642 E. 25th Street. 4

6 identified pediatrician, Jacalyn Blackwell-White, M.D., as an expert witness. Blackwell-White filed a report concluding to a reasonable degree of medical probability that appellee had been exposed to lead at the Property. Estelle L. Davis, Ph.D., was identified as an expert in rehabilitation counseling and prepared a report assessing appellee s employability and earning capacity given his impairments and absent his impairments. Dr. Davis opined that absent his impairments, appellee would likely function at a higher cognitive level[;] [h]e would likely not have issues with [a]ttention and [e]xecutive [f]unctions[;] he would likely finish two year[s] of college or the equivalent in a technical school[;] and [he would likely] have earnings comparable to someone with that level of education. Appellee further identified Richard Lurito, Ph.D, an economist, to determine the economic value today of the projected lost earnings of [appellee] as a result of his cognitive deficits. Based on Dr. Davis s opinion, Dr. Lurito concluded in his report that appellee has likely suffered an income loss of $1,148,308 or $1,675,777 due to his cognitive deficits. On July 22, 2014, appellants filed a motion for summary judgment, asserting that appellee could not meet his burden of establishing the necessary elements for negligence, violation of the MCPA, or negligent misrepresentation. After a hearing held on August 25, 2014, the court granted appellants motion for summary judgment as to the MCPA and negligent misrepresentation claims but denied the motion as to the negligence claim. Based on the evidence that appellee presented, the court held that the jury could find that [the Property] was the source[,] of appellee s lead exposure. Dr. 5

7 Prior to trial, appellants filed numerous motions in limine seeking to exclude the reports and testimony of Drs. Blackwell-White, Davis, and Lurito. Appellants argued that Dr. Blackwell-White should not be permitted to testify that the Property was the source of appellee s lead exposure, and that Dr. Davis lacked an adequate factual basis to opine about appellee s employment capabilities absent lead exposure. Because Dr. Lurito relied on Dr. Davis s opinion, appellants argued that his report and testimony should also be excluded. In addition, appellants also filed a motion in limine to exclude Dr. Lurito s report and testimony because it was produced after the end of discovery in violation of the court s scheduling order. On the first day of trial, the court heard argument and subsequently denied each of appellants above-mentioned motions. At trial, Ms. Robinson testified that during the first eighteen months of his life, appellee stayed at the Property exclusively. During this period of exclusive residence at the Property, appellee had blood lead levels of 12 µg/dl and 13 µg/dl. Ms. Robinson stated that appellee spent [m]ost of his time [ ] in the house[,] in various areas including the basement and his bedroom. According to his mother, appellee also spent time outside on the porch where he would ride his bike, or play with his toys[.] Ms. Robinson admitted that she observed her son putting his hands [and] toys in his mouth when he was a very young child. Appellee began attending daycare at other properties when he was approximately eighteen months old. Ms. Robinson testified that she used vouchers from the Maryland Social Services Administration to pay for appellee s daycare, and did not see chipping, peeling, or flaking paint at those facilities. Both Ms. Robinson and Moses testified concerning the condition of the Property. 6

8 When Ms. Robinson brought appellee home from the hospital to the Property, she said that there was chipping and peeling paint in multiple areas of the house including, [t]he window frames, the heaters, [and the] wall in the bedroom that Ms. Robinson shared with appellee. Consistent with her deposition testimony, Ms. Robinson recounted that there was a hole in the wall of the bedroom that appellee would often pick at. Ms. Robinson further stated that appellee spent everyday with his great-grandfather in the basement of the house. Moses testified that there was chipping, flaking, and peeling paint throughout the house, including on the basement door and on the walls[,] as well as on the front door, baseboards, windows, and front porch. A number of experts testified on behalf of appellee as to the condition of the Property. Appellee called Edward Rush Barnett, an expert in lead risk assessment and lead paint inspection. Barnett testified that it was his opinion, to a reasonable degree of [professional] probability[,] that there were lead-based paint hazards in the [P]roperty at the time that appellee lived there. Barnett s opinion was based on the identified conditions of paint in the [P]roperty.... the elevated blood lead [levels] of the child who lived in the property[,] his knowledge of old housing in Baltimore City[,] his knowledge of the presence of lead-based paint confirmed in the property, as well as the age of the property. Christopher White of ARC also testified as an expert in lead risk assessment. Based on (1) the 2013 ARC Report, which identified lead-based paint in a number of areas in the interior and exterior of the Property, and (2) his knowledge that houses built before the 1966 ban on lead-based paint in Baltimore City would have 7

9 contained lead-based paint, White opined that it was more likely than not that the Property contained lead-based paint while appellee was living there. Dr. Blackwell-White was accepted as an expert on the subject of pediatrics and childhood lead poisoning. Based on her experience and training in the field of pediatrics, Dr. Blackwell-White explained that, in general, deteriorating paint in old houses is the primary source of lead exposure for children in urban areas, such as Baltimore City. Over appellants objection, Dr. Blackwell-White testified that it was her opinion to a reasonable degree of medical probability[,] that the Property was the source of appellee s lead exposure. During her testimony, Dr. Blackwell-White explained that her opinion was based on, among other things: the 2013 ARC Report, the age of the house, appellee s elevated blood-lead levels, appellee s age at the time of his blood-lead leads, and testimony that there was lead dust and peeling, chipping, and flaking paint accessible to appellee while he was living at the Property. Concerning the damage appellee allegedly suffered because of lead exposure, Dr. Blackwell-White testified that appellee suffered an IQ [ ] loss [ ] in the range of four to five points[,] and she based her opinion on a study that as blood lead level rises, IQ points are lost.... Specifically,... that from rising blood lead level from, I believe, two to 10, there is a loss of 3.9 IQ points. For a blood lead level rise from 10 to 20, there s an additional IQ point loss of 1.9 points. And for blood lead level rise from 20 to 30, there is - - micrograms per deciliter - - there is an additional IQ point loss of.9 points. For support, Dr. Blackwell-White pointed to the testimony of appellee s expert in neuropsychology, Barry Hurwitz, Ph.D, who testified that appellee suffered from brain 8

10 impairment, specifically, problems with attention, concentration, problem solving, [and] switching attention. Dr. Blackwell-White testified that the cognitive impairments Dr. Hurwitz identified were also a symptom of lead exposure. Dr. Davis testified as to appellee s future employability and earning capacity given his deficits and absent his deficits. Based on her vocational assessment of appellee, Dr. Davis opined, to a reasonable degree of vocational probability[,] that appellee would not have the academic and intellectual competency of someone with a high school diploma[,] and will be in unskilled or low-level semi-skilled jobs. Dr. Davis further testified that absent his impairments, appellee would have likely completed some schooling beyond the high school level. Using Dr. Davis s opinion of appellee s employability, Dr. Lurtio testified that appellee suffered a loss of earning capacity of $1,073,042 due to his injuries. At the conclusion of appellee s case-in-chief, appellants made a motion for judgment, which was denied by the court. Appellants then proceeded to present their case. Appellants called experts who (1) questioned the scientific validity of the study used by appellee s experts to conclude that lead-based paint caused IQ loss, and (2) opined that there are other sources of lead exposure that children often encounter, such as toys, dirt, smoke, and water. At the close of appellants case and appellee s election not to offer any rebuttal evidence, appellants renewed their motion for judgment, which the court again denied. On September 19, 2014, the jury returned a verdict in favor of appellee, awarding $1,270,000 in economic damages and $818,330 in non-economic damages. Thereafter, appellants filed a motion for remittitur, a motion for judgment 9

11 notwithstanding the verdict, and a motion for a new trial. Appellants argued, inter alia, that appellee had failed to establish a prima facie case of negligence and to sufficiently establish economic damages. After appellee filed his responses, the trial court held a hearing and denied appellants motion for judgment notwithstanding the verdict and motion for new trial. The court partially granted appellants motion for remittitur by reducing the economic damages award to $1,000,000 and the non-economic damages award to $530,000, pursuant to Maryland s cap on non-economic damages. The court denied appellants request to reduce the economic damages to $0.00. Appellants timely filed a notice of appeal. Additional facts will be included as necessary to the resolution of the questions presented in this appeal. DISCUSSION I. Motion for Summary Judgment Appellants challenge the circuit court s denial of their motion for summary judgment as to appellee s negligence claim. As previously stated, the court granted appellants motion for summary judgment as to the MCPA and negligent misrepresentation claims but denied summary judgment as to the negligence claim. Unlike a grant of summary judgment, a circuit court s denial of a motion for summary judgment is reviewed for abuse of discretion. Hous. Auth. of Baltimore City v. Woodland, 438 Md. 415, 426 (2014). This is especially so in cases that involve[] not only pure legal questions but also an exercise of discretion as to whether the decision should be postponed until it can be supported by a complete factual record[.] Id. (alterations in original) (quoting Metro. Mortg. Fund, Inc. v. Basiliko, 288 Md. 25, 29 10

12 (1980)). The Court of Appeals has explained that, when presented with a motion for summary judgment, a court has discretion to affirmatively... deny... a summary judgment request in favor of a full hearing on the merits; and this discretion exists even though the technical requirements for the entry of such a judgment have been met. Id. (quoting Basiliko, 288 Md. at 28). In the absence of clear abuse, the decision of the trial judge will not be disturbed. Basiliko, 288 Md. at 28. Moreover, the Court has stated that an appellate court should be loath indeed to overturn, on a very narrow procedural ground, a final judgment on the merits entered in favor of the party resisting the summary judgment motion.... To turn the tables in this manner would be nothing short of substituting a known unjust result for a known just one. Woodland, 438 Md. at 427 (quoting Basiliko, 288 Md. at 28-29); see also Mathis v. Hargrove, 166 Md. App. 286, 305 (2005) (holding that only in rare circumstances should an appellate court reverse a trial court s denial of a summary judgment motion after there has been a full trial on the merits). Under Maryland Rule 2-501, a motion for summary judgment may be granted if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law. Md. Rule 2-501(f) (2018) (recodifying Md. Rule 2-501(e) (2014)). Where there is no genuine dispute as to any material fact, the non-moving party can still defeat a motion for summary judgment if such party can show that the moving party is not entitled to a judgment as a matter of law. See Haas v. Lockheed Martin Corp., 396 Md. 469, 478 (2007) ( [E]ven where the underlying facts are undisputed, if those facts are susceptible to more than one permissible inference, the choice between those inferences should not be made as 11

13 a matter of law, but should be submitted to the trier of fact. (alteration in original) (internal quotation marks omitted)). Otherwise stated, the non-moving party can defeat a motion for summary judgment by showing that it has proffered enough evidence to make out a prima facie case to send the case to the jury. Appellants argue that they were entitled to summary judgment because at the time of their motion, there was no evidence that appellee had been exposed to any lead-based paint hazards while residing at the Property. Appellants assert that, despite appellee s mother s statements that there was chipping paint in the interior of the Property, none of these locations tested positive for lead-based paint in the 2013 ARC Report. Moreover, appellants contend that, although the basement and front porch tested positive for leadbased paint in the ARC Report, no lead-paint hazards were identified. Appellee counters that he provided ample evidence of chipping, peeling, and flaking lead-based paint at the relevant time to overcome appellants motion for summary judgment. Contrary to appellants argument, appellee claims that the absence of a [lead] hazard at the time of the litigation does not mean that one did not exist in [,] and that according to Barnett, appellee s lead risk assessor, there were lead based paint hazards at that earlier time. Appellee concludes that the undisputed testimony of peeling, flaking and chipping paint at the relevant time, coupled with ARC s verification of lead in the precise areas where [appellee] stayed, coupled with his elevated blood [lead] levels at the time, proves that the lead-paint hazard existed in When a plaintiff alleges negligence based on a violation of a lead paint statute or ordinance, the plaintiff has the burden to present sufficient facts to demonstrate that (a) 12

14 the violation of a statute or ordinance designed to protect a specific class of persons which includes the plaintiff, and (b) that the violation proximately caused the injury complained of. Brooks v. Lewin Realty III, Inc., 378 Md. 70, 79 (2003); see also Hamilton v. Kirson, 439 Md. 501, 527 (2014) ( It is fundamental that in a negligence action the plaintiff has the burden of proving all the facts essential to constitute the cause of action. (internal quotation marks and citation omitted)). Part (a) of Brooks may be satisfied by showing that a defendant violated Sections 702 and 703 of the Baltimore City Housing Code, which were enacted to protect children from lead paint poisoning by putting landlords on notice of conditions which could enhance the risk of such injuries. 378 Md. at 81 (internal quotation marks and citation omitted). To be a violation of the City Housing Code, all that must be shown is that there was flaking, loose[,] or peeling paint. Kirson, 439 Md. at 525 (internal quotation marks and citation omitted). Where a plaintiff has produced evidence of peeling, chipping, or flaking paint, such a Code violation permits merely an inference of prima facie negligence on the part of the homeowner or landlord. Id. at As the Court of Appeals explained in Kirson, [s]uch an inference, however, does not eliminate the requirement that the plaintiff prove that the landlord s negligence caused proximately the injury. Id. at 526 (italic emphasis in original) (bold emphasis added). Part (b) of Brooks requires that the plaintiff present either direct or circumstantial evidence that establishes a series of links: (1) the link between the defendant s property and the plaintiff s exposure to lead; (2) the link between specific exposure to lead and the elevated blood lead levels[;] and (3) the link between those blood lead levels and the 13

15 injuries allegedly suffered by the plaintiff. Ross v. Hous. Auth. of Baltimore City, 430 Md. 648, 668 (2014). In other words, the evidence must show that the property at issue [1] must have been a source of [the plaintiff s] exposure to lead, [2] that exposure must have contributed to the elevated blood lead levels, and [3] the associated increase in blood lead levels must have been substantial enough to contribute to [his] injuries. Id. To defeat a motion for summary judgment, a plaintiff must demonstrate only a reasonable probability as to each of these links he is not required to conclusively establish them. Rogers v. Home Equity USA, Inc., 453 Md. 251, 265 (2017) (emphasis added). The Court of Appeals explained that for purposes of causation in lead-based paint cases at the summary judgment phase, a reasonable probability requires a showing that is less than more likely than not, but more than a mere possibility. Rowhouses, Inc. v. Smith, 446 Md. 611, 655 (2016) (emphasis added). Otherwise stated, there are degrees of probability, with more likely than not having the highest degree of probability, followed by reasonable probability, followed by mere possibility. Id. Appellants challenge to the denial of their motion for summary judgment focuses on the first link: whether or not appellee met his burden of establishing that the Property was a reasonably probable source of appellee s lead exposure. In Rowhouses Inc. v. Smith, the Court of Appeals examined the definition of reasonable probability in order to further clarify a plaintiff s burden of establishing a reasonably probable source of lead exposure. 446 Md. at 657. Considering the definitions of reasonable and probable together, the Court concluded that a reasonable probability is a fair likelihood that something is true. Id. The Court went on to explain that this definition, [i]n the context of lead-based paint 14

16 cases, [ ] means that the subject property is a reasonably probable source of a plaintiff s lead exposure where there is a fair likelihood that the subject property contained lead-based paint and was a source of the lead exposure. Id. The Court of Appeals has recognized two ways in which a lead paint plaintiff can establish the subject property as a reasonably probable source of his lead exposure. Home Equity, 453 Md. at ( Maryland appellate courts have recognized two ways in which a lead paint plaintiff can establish the subject property as a reasonably probable source of his lead exposure and resulting elevated blood lead levels. ). First, under the Dow theory of causation, a plaintiff can defeat a motion for summary judgment by presenting evidence that the subject property is the only possible source of the plaintiff s lead exposure. Id. at 265 (citing Dow v. L & R Properties, Inc., 144 Md. App. 67, (2002)). In other words, the plaintiff can present sufficient evidence of source... through the process of elimination. Id. at 266. The Court explained in Rowhouses, that under a Dow causation theory, circumstantial evidence, such as testimony that prior residences did not contain flaking paint, is enough to rule out other possible sources of lead exposure. Id. (citing Rowhouses, 446 Md. 611, ). Second, a plaintiff can survive summary judgment... by presenting evidence related solely to the subject property.... [t]he plaintiff can rule in the subject property as a reasonably probable source through either direct or circumstantial evidence. Id. (citing Kirson, 439 Md. at ). Under the Kirson theory of causation, the plaintiff is not required to eliminate all other possible sources of lead exposure. Id. The plaintiff s burden 15

17 of proof, however, does not change he is still only required to show that the subject property was a reasonably probable source of his injury-causing exposure. Id. In the instant case, appellee presented to the trial court the following evidence in support of his claim that he was exposed to lead-based paint at the Property: (1) the year that the Property was built 1920; (2) appellee s six blood tests, which show elevated blood-lead levels between 9-14 µg/dl while he resided at the Property; 5 (3) deposition testimony from Ms. Robinson that she moved into the Property when she was eight months pregnant with appellee and continued to live there until 2001, that the Property had chipping and peeling paint on the windows and radiator in her bedroom, that there was also a hole in the bedroom wall that appellee picked at, and that appellee spent most of the time in the basement with his great-grandfather; (4) Ms. Robinson s affidavit stating that appellee did not visit any other properties until [she] put him in day care in the summer of 1998 and that she and her mother saw appellee with paint chips on his hands and mouth[;] (5) an affidavit by Moses, who was a tenant of the Property at the relevant time, stating that there was chipping, peeling, and flaking paint all over the place[;] (6) a 2013 ARC report documenting lead-based paint on the basement doors, door frames, ceiling, 5 The blood lead level from the six tests, as discussed supra, are as follows: Date Taken December 3, 1997 May 13, 1998 November 11, 1998 June 11, 1999 February 18, 2000 August 30, 2000 Blood-Lead Level 12 µg/dl 13 µg/dl 12 µg/dl 14 µg/dl 9 µg/dl 9 µg/dl 16

18 and front porch; (7) Barnett s report concluding that appellee was exposed to lead-based hazards while living at the Property and that the deteriorated lead-based paint was a substantial contributing source of lead exposure for [appellee] when residing at [the Property;] and (8) Dr. Blackwell-White s report concluding that the Property was the only source of appellee s lead paint exposure, that lead paint at the Property was a substantial contributor to appellee s elevated blood-lead level, and that appellee suffered deficits as a result of his sustained exposure to lead based paint. Appellee argues that this evidence, viewed in a light most favorable to him, establishes the Property as a reasonably probable source of appellee s lead exposure. In its oral opinion denying appellants motion for summary judgment on the negligence claim the circuit court stated: The [c]ourt disagrees with [appellants] on several places. One, there s the argument that the property was tested and found to not have lead. The property was tested in The child was born and lived in the house, I think in 1997 and it is the first ten [m]onths of the child s life where in the child had elevated blood levels and there is no evidence, at this point; that the child went anywhere other than the arguable evidence that he was outside, but he spent a significant amount of time anywhere else but in his home and then the child went to daycare and the mother has guesstimated around eighteen [m]onths, but certainly not at eight or ten [m]onths or ten [m]onths when he was initially tested with these levels and then [appellants], of course, argue[] that s possible sources, because after roughly [the] first eighteen [m]onths, he went on to spend significant amounts of time presumably with the baby sitting and the daycare in other homes. However, I don t know that those other homes are other possible sources, I don t know, there s never been any evidence of the condition of those homes, for them to even be considered. Nonetheless, that doesn t take us out of the situation of the evidence that presented, at least for the first ten [m]onths of his life. The Court of Appeals ha[s] gone to great length to, this year, to help us understand that which is not Dow and I think in doing that, 17

19 they have helped us understand that which is Dow and I think in this particular case that is exactly what we have, a jury can very much find that the testing from 2013 is insignificant because the blood levels were tested in 1997 or 1998 and that is w[h]ere the child spent all of his time and so the jury could find that that was the source. That being said, the motion for summary judgment is also denied. The Court of Appeals recent decision in Rogers v. Home Equity is instructive. 453 Md. at 251. In that case, Home Equity claimed that it was entitled to summary judgment because Rogers had not produced enough evidence to establish the subject property as a reasonably probable source of lead exposure. Id. at 270. In support of his claim that he was exposed to lead-based paint at the subject property, Rogers produced the following evidence: (1) a 1976 Health Department report documenting lead paint on nineteen interior surfaces; (2) building permits that show[ed] construction at [the subject property] between 1976 and 1996, but d[id] not indicate a gut rehabilitation that would have fully abated the lead-based paint; (3) a 2007 MDE Lead Paint Risk Reduction Inspection Certificate that did not certify the [subject property] as lead free; (4) Rogers blood tests, which indicated elevated blood-lead levels while residing at the subject property; and (5) a 2014 Arc report documenting lead-based paint on the exterior of [the subject property]. Id. at 267. The Court of Appeals disagreed with Home Equity, concluding that Rogers presented enough evidence to advance [the subject property] across the line from a mere possible source of lead exposure to a reasonably probable source of lead exposure. Id. at 271. Although not explicit, the Court applied a Kirson theory of causation, 6 in which, as 6 Concurring in Home Equity, Judge Watts clarified that although not explicit, the majority s conclusion was premised on a Kirson theory of causation. 453 Md. at 278 (2017) (Watts, J., concurring). 18

20 explained above, a plaintiff can establish source and source causation by presenting evidence related solely to the subject property[,] and is not required to eliminate all other possible sources of lead exposure. Id. at 266. Applying Kirson, the Court explained that [t]he 1976 interior lead testing, paired with the lack of evidence showing full lead abatement, gives rise to a reasonable inference that [the subject property s] interior still contained lead-based paint when Rogers lived there. Id. at 271. The Court was further persuaded by the the 2014 exterior testing reveal[ing] lead-based paint on four surfaces, including the porch where Rogers often played[.] Id. According to the Court, the quality and quantity of circumstantial evidence in the record distinguished Rogers case from Hamilton v. Dackman, where this Court concluded that evidence of lead-based paint on only one, out-of-reach exterior surface was insufficient to establish the subject property as a reasonably probable source of lead exposure. Id. at Unlike Hamilton, Rogers presented evidence that the exterior and the interior of the subject property contained lead-based paint. See id. at 271. The Court concluded that Home Equity was not entitled to summary judgment because Rogers presented sufficient circumstantial evidence to such a degree that a jury could reasonably infer that the subject property contained lead-based paint and was a reasonable probable source of his lead exposure. Id. at 283 (Watts, J., concurring) (summarizing the majority s ruling). Applying a Kirson theory of causation to appellee s case, we hold that the evidence presented was sufficient to advance [the Property] across the line from a mere probable source of lead exposure to a reasonably probable source of lead exposure. See id. at

21 Here, appellee presented evidence that there was chipping, peeling, and flaking paint throughout the Property, which was built in 1920, and that in 2013 the exterior and the interior of the Property contained lead-based paint. The 2013 ARC Report detected leadbased paint in areas of the Property where appellee s mother and grandmother testified appellee spent much of his time. Appellee included the expert opinions of Barnett and Dr. Blackwell-White, both of whom opined that the Property contained lead-based paint during appellee s residency. Most importantly, appellee s first two elevated blood-lead levels were recorded at a time when appellee was not visiting any other properties. Based on this evidence, appellee established that there was a fair likelihood that the Property contained lead at the time of his residency and was the source of his injury-causing lead exposure. The circumstantial evidence appellee presented was sufficient to such a degree that a jury could reasonably infer that [the Property] contained lead-based paint and was a reasonable probable source of his lead exposure. See id. at 283 (Watts, J., concurring). Nevertheless, appellants argue that the circuit court erred 7 in denying their motion for summary judgment because appellee failed to rule out other potential reasonably probable sources of lead. Specifically, appellants challenge appellee s use of circumstantial evidence to prove that there was lead at the Property. Citing to Dow, appellants claim that in order to make out a prima facie case of negligence using circumstantial evidence, appellee was required to rule out other reasonably probable 7 Appellant misstates the standard of review for a denial of a motion for summary judgment. Whether the trial court was legally correct is the standard for a grant of summary judgment. As explained above, the denial of a motion to summary judgment is reviewed under an abuse of discretion standard. See Woodland, 438 Md. at

22 sources of lead. Because appellee did not rule out other probable sources, appellants claim that appellee s case should have failed. In Home Equity, the Court of Appeals expressly rejected an argument similar to that of appellants. 8 See 453 Md. at 268. The Court explained that, under the Kirson theory of causation, a plaintiff can make out a prima facie case using circumstantial evidence by presenting evidence related solely to the subject property. Id. at 266 (emphasis added). In other words, a plaintiff can rule in the subject property by presenting sufficient evidence, circumstantial, direct, or both, to show that the subject property was a reasonably probable source of [the plaintiff s] injury-causing exposure. Id. Because Rogers proceeded under a Kirson theory of causation, instead of Dow, the Court held that Rogers use of circumstantial evidence [did] not require him to eliminate all other possible sources to survive summary judgment. Id. at 268. Similarly, in the instant case, appellee was not required to eliminate all other possible sources of lead to survive summary judgment, because he was proceeding under a Kirson theory of causation. As indicated above, appellee presented sufficient evidence from which a jury could infer reasonably that the [Property] contained lead-based paint without having to exclude all other sources of potential exposure to lead-paint poisoning. See Kirson, 439 Md. at 538. Finally, this is not one of those rare circumstances in which this Court will reverse a trial court s denial of a motion for summary judgment after there has been a full trial on 8 We recognize that appellants did not have the luxury of having Home Equity at the time of briefing. 21

23 the merits. The circuit court s denial of appellants motion for summary judgment did not preclude appellants from defending their case on the merits, nor [did it] prevent [ ] [appellants] from placing the evidence offered in support of their motion before the jury. See Mathis, 166 Md. App. at 306. A trial on the merits was held in this case, and a jury determined the outcome in favor of appellee. Accordingly, we hold that the circuit court did not abuse its discretion in denying appellants motion for summary judgment. II. Expert Testimony Appellants argue that the court abused its discretion by permitting three of appellee s expert witnesses to testify at trial because they lacked qualifications and sufficient factual bases for their opinions. First, appellants contend that as a pediatrician, Dr. Blackwell-White lacked the qualifications and factual basis to testify as to the source of appellee s lead exposure and the resulting elevated blood-lead levels. Second, appellants challenge the testimony of vocational expert, Dr. Davis, because she lacked the qualifications and factual basis to offer an opinion on what appellee s vocational abilities would have been absent lead exposure. Third, appellants argue that Dr. Lurito s economic opinion as to pre-injury and employment prospects lacked a sufficient factual basis because of his reliance on Dr. Davis s testimony. It is often said that decisions to admit or exclude expert testimony fall squarely within the discretion of the trial court. Levitas v. Christian, 454 Md. 233, 245 (2017). Appellate courts review evidentiary rulings pursuant to the abuse of discretion standard, reversing only when the court exercised discretion in an arbitrary and capricious manner 22

24 or... acted beyond the letter or reason of the law. Taylor v. Fishkind, 207 Md. App. 121, 137 (2012) (alterations omitted) (internal quotation marks and citation omitted). Expert testimony is intended to help the jury in resolving an issue outside the average person s realm of knowledge. Levitas, 454 Md. at 245 (citing Roy v. Dackman, 445 Md. 23, 41 (2015). Under Maryland Rule 5-702, [e]xpert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. The trial court makes this determination based on three factors: (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education[;] (2) the appropriateness of the expert testimony on the particular subject[;] and (3) whether a sufficient factual basis exists to support the expert testimony. Md. Rule 5-702; see also Levitas, 454 Md. at 245. The Court of Appeals has explained that under the first factor, an expert may be qualified to testify if he is reasonably familiar with the subject under investigation. Levitas, 454 Md. at 245 (quoting Roy, 445 Md. at 41). An expert s familiarity can come from professional training, observation, actual experience, or any combination of these factors. Id. (internal quotation marks and citation omitted). Moreover, an expert s testimony is appropriate if he possesses special knowledge derived not only from his own experience, but also from the [experience] and reasoning of others, communicated by personal association or through books or other sources. Id. at (internal quotation marks and citation omitted). As a result, an expert does not need to have hands-on experience with the subject about which he proposes to testify. Id. at 245. It is sufficient if the court is satisfied that the expert has in some way gained such experience in the matter 23

25 as would entitle his evidence to credit. Id. at 246 (quoting Radman v. Harold, 279 Md. 167, 169 (1977)). Regarding the third factor of Rule 5-702, expert testimony must have an adequate factual basis so that it is more than mere speculation or conjecture. Id. (quoting Exxon Mobil Corp. v. Ford, 433 Md. 426, 478, as supplemented on denial of reconsideration, 433 Md. 493, 71 A.3d 144 (2013)). Without an adequate factual basis, an expert s opinion has no probative force. Id. The Court of Appeals has explained that [t]he probative value of an expert s testimony is directly related to the soundness of [the] reasons given for his conclusions. Id. (alterations in original) (quoting Beatty v. Trailmaster Prod., Inc., 330 Md. 726, 741 (1993)). Accordingly, the Court has determined that [a]n adequate factual basis requires: (1) an adequate supply of data; and (2) a reliable methodology for analyzing the data. Id. When the facts or data relied on by an expert are of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, they need not be independently admissible at trial. Id. (internal quotation marks and citation omitted). In evaluating the expert witness factors, the trial court is only concerned with whether the expert s testimony is admissible. Id. According to the Court of Appeals, objections attacking an expert s training, expertise or basis of knowledge go to the weight of the evidence and not its admissibility. Id. An expert s qualifications and methods may be scrutinized during cross-examination. Id. Because the fact-finder need not accept an expert s opinion, the jury may assess how much weight to give an expert s testimony. Id. 24

26 a. Dr. Blackwell-White Appellants contend that Dr. Blackwell-White s testimony that the Property was the source of appellee s lead exposure and resulting elevated blood-lead levels should have been excluded, because she lacked the qualifications and factual basis to provide such testimony for the same reasons that her opinion was excluded in Ross v. Housing Authority of Baltimore City, 430 Md. 648 (2013). Appellee counters that unlike Ross, markedly more facts underlie Dr. Blackwell-White s opinion than were present in that case, including the opinion of appellee s lead risk assessor Barnett that the Property contained lead-based paint at the time that appellee resided there and was a source of his lead exposure. Accordingly, appellee argues that, as a doctor with years of experience treating lead poisoned patients, Dr. Blackwell-White had a sufficient factual basis and the qualifications to opine that the Property was the source of appellee s lead exposure and resulting elevated-blood levels. In Ross, Dr. Blackwell-White was offered as an expert to opine that a house owned by the Housing Authority of Baltimore City was the source of the plaintiff s lead exposure and resulting elevated blood-lead levels (the first and second links of causation under Ross). 430 Md. at 651, 656. As to the first link, Dr. Blackwell-White testified that, when a child has an elevated lead level, the most likely source of that lead is the property where the child resides: If there s peeling, flaking paint in an old house, that is the most likely source of exposure for a child with elevated lead levels. Id. at When asked what type of factors she takes into account when rendering an opinion as to the source of lead exposure for a child, Dr. Blackwell-White stated that she considers the age and lead levels of the child, the age of the house, the condition of the house, and whether the child visited 25

27 other places. Id. at Regarding the second link, Dr. Blackwell-White stated that it was her opinion that the subject property was the source of the elevated blood lead levels of [the plaintiff] during the period from March 1992 through Id. at 659. She based her opinion on the following factors: Id. at 659. (1) the increase in [plaintiff s] elevated blood lead levels when she moved from the previous address to the [property]; (2) the age and condition of the property as well as the lead inspection tests from the [subject property], which Dr. Blackwell White described as indicating the presence of lead (although she conceded that some of the test levels on which she relied did not meet HUD thresholds for lead hazard); (3) the access [plaintiff] had, as a child, to the areas suspected to contain lead paint dust inside the house; (4) the possibility that lead dust would escape into the living area (a) from the exterior window frame through the open window and (b) from the plaster walls suspected to contain lead paint through cracks in the sheetrock; and (5) the lack of other likely sources of lead exposure during the time [plaintiff] was living at the [subject property]. On cross-examination, Dr. Blackwell-White was asked if in her opinion the presence of lead-based paint inside a house was automatically considered as a contributing cause of elevated blood-lead levels. Id. at 660. Dr. Blackwell-White replied: If there is lead-based paint inside a house, I will consider it to be a contributing cause to elevated lead levels. She elaborated that she would assume the home to be the most probable source of elevated blood levels until proven otherwise, particularly if the house was built before Id. In upholding the trial court s exclusion of Dr. Blackwell-White s testimony, the Court of Appeals noted that Dr. Blackwell-White did not explain adequately how she 26

28 reached the conclusion that the [subject property] was the source of the lead exposure that resulted in [the plaintiff s] elevated blood lead levels. Id. at 663. The Court elaborated that [g]iven the uncontroverted evidence that there were various other sources of lead exposure in [the plaintiff s] environment, including her prior residence, and that she came to the [subject property] with already elevated blood lead levels, there were likely multiple causes of her elevated blood lead levels. Id. at 664. According to the Court, [t]he real question for the fact-finder is how much exposure to lead at the [subject property] contributed to [the plaintiff s] blood lead levels over the pertinent time period[.] Id. (emphasis in original). Dr. Blackwell-White s testimony that she was merely identifying potential risk and could not make any statement as to causation with certainty[,] was therefore as likely to confuse as to assist a jury. Id. Thus the Court concluded that Dr. Blackwell-White lacked an adequate factual basis to opine that the subject property was the source of the plaintiff s lead exposure that resulted in her elevated blood lead levels. Id. at 663. In the instant case, Dr. Blackwell-White testified that she reviewed Plaintiff s Answers to Interrogatories; the plaintiff s deposition testimony; the plaintiff s mother s deposition testimony; the neuropsychological report by Dr. Hurwitz; MDE medical records; East Baltimore Medical Center medical records; Harbor Hospital records; birth records from, I believe Johns Hopkins Hospital; school records; a SDAT information sheet for [the Property]; the ARC report for [the Property]; building permits for the [Property]; and Dr. Sch[e]ller s report. Dr. Blackwell-White testified to each of the documents she reviewed and explained the importance of the document in informing her conclusion that the Property was the 27